Compulsive Gamblers Lose Again, In Court

written by I. Nelson Rose

#88 © Copyright 2003, all rights reserved worldwide Gambling and the Law® is a registered trademark of Professor I Nelson Rose, Whittier Law School, Costa Mesa, CA

“If it wasn’t for bad luck, I wouldn’t have no luck at all.”

“Born Under A Bad Sign” by Booker T. Jones & William Bell

When a compulsive gambler sues a casino, the legal question usually comes down to one issue: Does the gambling operator owe a duty to protect the gambler from himself?

The answer is – No.

Operators may owe a duty to the state. But at least in Indiana, a casino owes no duty to a compulsive gambler, even if the gambler’s name is on the casino’s list of players it is required to exclude.

In an unusual coincidence, three different courts issued opinions on this same question during the first three months of 2003. All three decisions were as strong as they could possibly be, in favor of the casinos.

The facts of cases involving compulsive gamblers are often tragic. Sometimes, however, what is a tragedy to the individuals involved looks more like a dark comedy to outsiders.

Take the case of Mark Merrill. His suit is the most important, because it went all the way up to the federal Seventh Circuit Court of Appeals, the Court below the U.S. Supreme Court.

Merrill’s problem is not only that he is a compulsive gambler. He also robbed banks.

He blamed the bank-robbing on Donald Trump.

Merrill claimed that he entered a mental health clinic in 1996, and that his rehab counselor made an oral contract with Trump’s Gary, Indiana, casino, to keep Merrill out. Unfortunately, the rehab counselor said, under oath, that there was no such oral contract.

Since breach of contract would not work, Merrill switched to claims of fraud, constructive fraud, strict liability, intentional and reckless disregard of others’ safety, negligence, and breach of the implied covenant of good faith and fair dealing. This is all based on the casino letting Merrill remain on the riverboat after he wrote and asked that his name be added to the casino’s Eviction List.

My guess is that Merrill would have had a hard time convincing a jury that the casino somehow caused him to rob banks. We will never know, because the trial judge threw out his complaint.

The Court of Appeals agreed that there was no reason to let the case go to trial. Even if Merrill proved every fact he was alleging, the casino would not be liable, because it owed him no duty of care.

An old maxim states, “For every wrong, there is a remedy.” That may be true. But it does not say that, “For every harm, there is a remedy.” Sometimes bad things happen. But another person is not liable for damages suffered by a victim unless he has somehow “wronged” that victim. If you trip while walking and reading this article, you will have been injured, but I do not owe you a duty to warn you not to walk while reading.

Merrill tried to show that Trump owed him a duty because Indiana regulations require casino to maintain an Eviction List and to prohibit entry to those on the list. Merrill’s problem was first a matter of timing, since the regulation was not implemented until 2000. More importantly, the Court found that Indiana casinos have an obligation to follow the regulations or be fined. There is no indication that the State Legislature or the Gaming Commission intended that breaking the regulation would allow the casino to be sued.

This is a common problem in the law. Legislatures often pass statutes to regulate or even criminalize behavior, but say nothing about whether they intend to create private causes of action. In the case of casino gambling, the courts usually find that the silence of the Legislature was intentional. When the State enacts hundreds of laws and rules and does not say that breaking one of those regulations means the casino can be sued, then the State did not intend that the casino could be sued.

In Indiana, the courts had extra help with deciding whether a casino owed a duty to a compulsive gambler. There were already many cases dealing with the duty owed by a tavern. If a bartender serves a patron alcohol, the tavern can be liable to a person run over by the drunk patron. But a patron who injures himself while driving drunk cannot recover from the tavern. Since Indiana law says a bar owes no duty to protect a drunk from himself, compulsive gamblers should not receive greater protection.

The other two cases had similar facts and identical rulings. Ms. Johnnie Brown sued Argosy, alleging the riverboat was negligent in failing to bar her husband from its casino, despite his “routine and substantial monetary losses.” She claimed this caused her financial, physical and emotional harm.

Judge Sarah Evans Barker ruled, “Ms. Brown bases her claim for relief on a legal duty that Indiana does not recognize. There is no set of facts which would entitle Ms. Brown to relief based on this theory.”

David Williams, the last case, is the saddest. Once an auditor with the Indiana Department of Revenue, Williams went from a frugal man who clipped grocery coupons, to a compulsive gambler who lost everything. Even craps was too slow for him, so he switched to slots. He was institutionalized after contemplating suicide.

The casino, Aztar, sent him a “Cease Admissions” letter, saying Williams would have to present “medical/psychological information which demonstrates that your patronage of our facility poses no threat to your safety and/or well-being” before it would let him in.

Williams snuck in anyway. What makes his case unusual is his use of his “Fun Card.” This was probably the first lawsuit where a compulsive gambler had access to a casino’s internal player-tracking records. Williams wanted to show that the casino knew exactly where and when he was gambling, when they were supposed to keep him out.

Once again the Judge had no sympathy. Besides being bound by the higher Court’s decision in Merrill, U.S. District Judge John Tinder wrote:

Whether this case is viewed as a claim for just compensation… or an effort to hit the jackpot in litigation that he couldn’t achieve on the river boat casino… through this lawsuit and a plethora of federal and state law theories, Williams seeks a determination that the gambling industry owed him a duty to protect him from himself. Despite his counsel’s creative efforts, and regardless of Williams’ sympathetic plight, neither federal nor Indiana law provides him any refuge or reward.

The Indiana Legislators have the power to overrule the courts. But should they? Are suits by compulsive gamblers like the obese plaintiff who tried to sue McDonalds? Or are casinos taking advantage of people who are mentally ill?

Professor I Nelson Rose is recognized as one of the world’s leading authorities on gambling law. His website is

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